15 November 2021<\/p>\n\n\n\n
On 15 November 2021 an online speech entitled \u201eThe Genesis of Linking Limitation on the Internet\u201d presented by Bart\u0142omiej Or\u0119ziak was published. It was organized within the framework of the Central European Professors\u2019 Network 2021, in cooperation with the Ferenc M\u00e1dl Institute of Comparative Law, the European Association for Comparative Law and the Institute of Justice in Warsaw.<\/p>\n\n\n\n
The online speech was organized as a dissemination event of Bart\u0142omiej Or\u0119ziak, a member of the research group titled \u201cThe Impact of Digital Platforms and Social Media on Freedom of Expression and Pluralism.\u201d.<\/p>\n\n\n\n
The delivered paper concerns the genesis of linking limitation on the Internet what was passed by the Court of Justice of the European Union (hereinafter just: Court).<\/p>\n\n\n\n
The key is the judgment in GS MEDIA as the most important and revolutionary case in which the Court introduced the first explicit link restrictions. It was issued after the judgement in Svensson and BestWater, in which the Court, as a rule, did not introduce a restriction on the freedom of linking on the Internet.<\/p>\n\n\n\n
First of all, the author presented a number of facts. In October 2011, the publisher of famous magazine, Sanoma, took photos of Mrs. Dekker. They wanted to publish them in their magazine in December. However, at the end of October GeenStijl website owned by company GS MEDIA got a message from an anonymous user with a hyperlink reference to a website where there was a file with pictures of Mrs. Dekker (hereinafter: disputed photos).<\/p>\n\n\n\n
On the same day on GeenStijl appeared an article containing a hyperlink to the disputed photos. It was October. After Sanoma`s protest, GeenStijl website editors decided to publish a second article on the dispute which arose between them and Sanoma. This article has added a hyperlink to the imageshack.us website (where were disputed photos).<\/p>\n\n\n\n
GeenStiji publishes a third article which again contained a hyperlink referring to the disputed photos, under which Internet users posted links in the form of comments referring to various websites containing the disputed photos. According to Sanoma\u2019s plans, the photos were<\/p>\n\n\n\n
published in famous magazines in December. But it is also a fact that the photos were made available on the Internet as early as October, and GeenStijl made the linking of these photos against Sanoma.<\/p>\n\n\n\n
Sanoma, Playboy and Ms. Britt Geertruid Dekker versus GS Media were pitted in the courtroom in front of the Supreme Court of the Netherlands. The litigation centered on the interpretation of the term \u201ccommunication to the public\u201d as used in Article 3(1) of Directive 2001\/29\/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter: Directive 2001\/29) (OJ L 167, 22.6.2001, p. 10\u201319). The national court, having doubts about the merits of the case, decided to suspend the proceedings and, pursuant to Article 267 of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, p. 47\u2013 390), ask three questions to the Court of Justice of the European Union for a preliminary ruling. The national court sought to ascertain, on the merits, whether and in what circumstances, if any, the inclusion on a website of a hyperlink to protected works which are freely accessible on another website without the copyright holder\u2019s consent constitutes a \u201ccommunication to the public\u201d.<\/p>\n\n\n\n
The essence of the GS Media ruling comes down to how the concept of \u201ccommunication to the public\u201d used in the directive should be understood. Court proposes to look at it through the prism of principles and factors indicated in GS Media case. The principle of two conditions and the principle of individual assessment were presented there. The first is that the term \u201ccommunication to the public\u201d combines two conditions that need to be fulfilled simultaneously: it is the \u201cact of communication\u201d of protected work and making it \u201cavailable to the public\u201d.<\/p>\n\n\n\n
The second, by contrast, requires an individualized assessment that can be made after taking into account a number of complementary factors. The first factor identified by Court is the essential role of the user and the intended nature of his action. He performs the act of communication when he is fully aware of that, were it not for his action, other Internet users would not, in principle, have access to the protected work. The second factor is the very concept of \u201cpublic\u201d, which assumes an unlimited and at the same time quite large number of potential recipients. However, that the use of the term \u201cavailable to the public\u201d requires that the protected work be made available through technology other than what was previously used. In case of technology identities, we are forced to refer to the concept of \u201cnew public\u201d, so to make a protected work more accessible to a wider audience than it did before. The third factor is the consent of the copyright holder. As the Court has pointed out in its earlier rulings, if that consent<\/p>\n\n\n\n
is unlimited, it must be presumed to cover all Internet users as such. On the other hand, if it has a limited scope, reference should be made to the already mentioned \u201cnew public\u201d. The fourth and last factor identified by the Court is the profit nature of the communication. It is therefore relevant whether the user publishes the protected work in order to increase his\/her profit or whether it is the other way around and he\/she does so without profit. This is a key distinction because in the first case, there is a presumption that the user knows or could have known that the protected work was published without the copyright owner\u2019s consent. In contrast, in the second case, there is a presumption of contrary content. With respect to both, there is an opportunity to prove the contrary.<\/p>\n\n\n\n
In light of the above considerations, the Court states that: \u201cArticle 3(1) of Directive 2001\/29 must be interpreted as meaning that, in order to determine whether the inclusion on a website of hyperlinks to protected works which are freely accessible on another website without the copyright holder\u2019s consent constitutes a \u2018communication to the public\u2019 within the meaning of that provision, it is necessary to establish whether those links were made available without the pursuit of pecuniary gain by a person who did not know or could not reasonably have known of the unlawful nature of the publication of those works on that other website or, on the contrary, whether those links were made available for such a purpose, in a situation in which that knowledge must be presumed\u201d.<\/p>\n\n\n\n
Referring to the FilmSpeler and The Pirate Bay cases, the author indicated that these judgments demonstrate that the principles and factors developed in the GS Media case have been consistently applied by the Court. Based on them, the Court concluded in FilmSpeler that the concept of \u2018communication to the public\u2019 within the meaning of Article 3(1) of the Directive 2001\/29 must be interpreted as covering the sale of a media player containing pre-installed plug-ins, available on the internet, containing hyperlinks to sites accessible to the public on which works protected by copyright have been made available to the public without the consent of the rightholders. The author concludes that this is a new type of linking identified by the Court -linking in physical devices \u2013 linking offline, which makes the factual nature expand the circle of entities responsible for linking. In the Pirate Bay case the Court concluded that the concept of \u2018communication to the public\u2019s must be interpreted as making available and managing on the Internet an exchange platform which, through the indexing of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and share them within a peer-to-peer network. To sum up the judicial process does not change in these judgments, it is based on the same factors and principles as in<\/p>\n\n\n\n
the case of GS Media. The inference process does not change the products of this inference change.<\/p>\n\n\n\n
Author shares with us his reflections on the Court linking restriction model and present selected problems related to this:<\/p>\n\n\n\n